Impeachment's real star: the Constitution

America's blueprint for government comes under intense scrutiny - andis strengthened in the process.

February 4, 1999

By Ann Scott TysonSpecial correspondent of The Christian Science Monitor

WASHINGTON

Pulled from suit pockets on the House and Senate floors, waved in front of television cameras, and cited again and again during the impeachment debate is an unassuming star: the United States Constitution.

The 211-year-old document and its 18th-century drafters have basked in rare nationwide publicity in recent months as both Congress and the White House repeatedly cite the Constitution as the only authoritative road map for impeachment.

This phenomenon, to many experts, is the silver lining of a dreary political ordeal. "We have been reacquainted with our constitutional heritage," says Stephen Presser, a legal historian at Northwestern University in Evanston, Ill., likening the impeachment arguments to "a national constitutional law seminar."

"The Federalist Papers are in danger of becoming a bestseller," quips Jeffrey Abramson, a constitutional law scholar at Brandeis University in Boston, referring to the famous series of essays on the Constitution by Alexander Hamilton, John Jay, and James Madison in 1787 and 1788.

Dog-eared document

Indeed, at every key juncture in the debate over removing President Clinton, politicians and lawyers have raised important questions of constitutionality - from the standards for impeachment, to the dual roles of the House and Senate, to whether options short of conviction such as censure or "findings of fact" are viable.

How has the Constitution fared under this intense scrutiny, and how has its meaning changed, if at all?

Overall, many experts believe, the unique American charter has been strengthened, as both advocates and opponents of impeachment attempt to bolster their arguments by looking back to the framers' original intent.

The renewed focus on the Constitution's historical meaning marks an important departure from a trend in the 1980s and '90s that stressed interpreting the document in accordance with modern court decisions, they say.

"Both sides have emphasized, 'What do the framers say?' and treat that as authoritative," says Michael McConnell, a professor of constitutional law at the University of Utah in Salt Lake City.

"That is all to the good. People are coming to realize that the point of the Constitution is to have some fixed principles," he says, adding that "the Constitution is not very valuable to us if its meaning fluctuates with current perceptions."

Other standards

Lawmakers have also considered criminal laws on perjury and obstruction of justice, as well as precedents from the earlier impeachment proceedings against Presidents Richard Nixon and Andrew Johnson. Ultimately, though, these have been judged against the enduring constitutional backdrop of "high crimes and misdemeanors."

At the same time, the Constitution has been reinvigorated by the struggle of members of Congress, White House lawyers, and scholars to apply the seldom-invoked impeachment clauses to this particular case. "There is this tremendously underused part of the Constitution - and all of a sudden it's called into action," says Mr. Abramson.

By fleshing out the often open-ended language of the framers, the current generation of Americans is playing an important role in advancing a "living Constitution," he says.

Broadly speaking, many legal scholars say the nation has been well served by the impeachment process outlined by the Constitution's framers, who were intent on guarding against the tyranny of majority factions. For example, although Mr. Clinton was impeached by the Republican-led House along party lines, the requirement of a two-thirds vote in the Senate makes conviction along party lines impossible.

Balance-of-powers issue

Still, legal scholars differ on the historic impact of this impeachment for the constitutional balance of powers. Some contend that the House vote lowered the bar for impeachment and will weaken the presidency as a result. "This could make impeachment a more frequent and available remedy for opponents of the president," says Cass Sunstein, a University of Chicago law professor.

Others argue that if Clinton is acquitted - as is widely expected - it will expand presidential authority. "The bar for impeachable offenses will have been raised beyond what the framers intended, and unchecked presidential power may be a greater possibility," says Mr. Presser.

A third view among experts is that this impeachment process - with its accompanying political turmoil - will itself serve as a deterrent against a tit-for-tat increase in attempts to remove the president in the future. Democrats, who consider this impeachment illegitimate, could find common ground with Republicans, who view the presidential misconduct as unique, in a shared reluctance to impeach.

"Presidents will be even more concerned about obeying the law in the future," says John McGinnis, a constitutional expert at Yeshiva University in New York.

In three other areas of constitutional uncertainty raised by impeachment, scholars expressed greater agreement.

*Censure by the Senate, a proposal favored by many Democrats, is constitutional, although perhaps not tremendously meaningful because it can be reversed.

*A "findings of fact" option stating that Clinton committed certain misdeeds, supported by some Senate Republicans, is constitutionally far more problematic because it would come before a final vote on articles of impeachment.

*An indictment of Clinton while he is in office by independent counsel Kenneth Starr would likely be constitutional, but a trial or imprisonment would not. Therefore, experts say, it would be more prudent to wait until Clinton leaves office.

Still, experts stress that the process of searching for the answers is itself constructive. "History is a conversation," says Presser. "Nothing ever comes to a clear-cut final conclusion."